RIAA lobbyist becomes federal judge, rules on file-sharing cases

New federal judge Beryl Howell last week cleared the way for mass P2P …

Last week, Washington, DC federal judge Beryl Howell ruled on three mass file-sharing lawsuits. Judges in Texas, West Virginia, and Illinois had all ruled recently that such lawsuits were defective in various ways, but Howell gave her cases the green light; attorneys could use the federal courts to sue thousands of people at once and then issue mass subpoenas to Internet providers. Yes, issues of "joinder" and "jurisdiction" would no doubt arise later, but the initial mass unmasking of alleged file-swappers was legitimate.

Howell isn't the only judge to believe this, but her important ruling is especially interesting because of Howell's previous work: lobbying for the recording industry during the time period when the RIAA was engaged in its own campaign of mass lawsuits against individuals.

The news, first reported in a piece at TorrentFreak, nicely illustrates the revolving door between government and industry. And it reminds us just how complicated questions of influence can be.

The door keeps revolving

Howell has had a long career in law enforcement. She was an assistant US attorney in New York during the early 1990s and oversaw "numerous wiretap investigations and conducted lengthy grand jury investigations, including cases against the leadership of the Chinatown Flying Dragons gang, extortion cases resulting in the convictions of twenty-nine New York City building inspectors, and a money laundering case resulting in the seizure of $19 million in cash narcotics proceeds," according to her bio.

Beryl Howell

She then moved to the Senate, where she served as general counsel for the Senate Judiciary Committee under Sen. Patrick Leahy (D-VT), who has close ties to the copyright industries (Leahy is one of the big backers of the COICA Web censorship law that he guarantees will be passed later this year.)

There, Howell helped to write CALEA (the law extending wiretap powers to the Internet) along with the No Electronic Theft Act (providing tougher penalties for online copyright crimes), the DMCA (making it illegal to break or bypass DRM, even if you want to rip a movie from a DVD you own to your iPod), and the Digital Theft Deterrence and Copyright Damages Deterrence Act.

She then moved into private life at Stroz Friedberg, where she began lobbying for the RIAA, according to the Center for Responsive Politics. Between 2004-2009, Howell was the only listed lobbyist at the firm; the RIAA was her exclusive lobbying client for most of that time. A lobbyist disclosure form describes her as working on "legislation concerning copyright laws as applied to digital music"—which she would be well-placed to do, having previously helped to write such laws.

Center for Responsive Politics

Howell made some small donations to Barack Obama. When Obama won the presidency, for instance, Howell gave $327 to help fund inaugural events in DC.

In 2010, the Obama administration tapped her to move back into government, serving as a federal judge. In December, she was installed in the DC District Court, where the US Copyright Group filed most of its mass P2P lawsuits. Howell took on several of the cases.

And she's currently listed as a "Board Alum" for the Center for Democracy & Technology, which generally stands up for Internet privacy, opposes COICA in it current form, and objected to Anti-Counterfeiting Trade Agreement.

Howell's work at Stroz Friedberg also went well beyond RIAA lobbying; the FBI even gave her a "Director's Award" during her time at Stroz Friedberg for her "valuable contributions" to a case the Bureau investigated.

Howell isn't some one-dimensional industry shill; she was a philosophy major at Bryn Mawr, has three kids, and her husband works as a producer for National Geographic Television & Film. But lobbying money tends to raise questions when the lobbyists move back into public life.

Recusal conditions

Many judges were previously lawyers, and they are not required to recuse themselves from areas in which they previously litigated or lobbied unless they meet certain conditions. Those conditions are spelled out in Title 28, part I, chapter 21, section 455 of the US Code:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

Having worked with the RIAA rather than the small movie producers bringing the current suits, and having worked for the industry on legislation rather than litigation, Howell does not appear to have any direct stake in these particular cases. And all judges come to their work with a personal perspective and a cast of mind.

Still, years of paid work for particular corporate interests could certainly be perceived as having undue influence on a judge's approach. For instance, Howell's recent ruling was concerned that P2P lawyers simply couldn't afford lawsuits if they had to file their $350 cases against every IP address separately. "It is highly unlikely that the plaintiffs could protect their copyright in a cost-effective manner," she noted.

But for other judges, this was precisely the point: mass P2P lawsuits were an inappropriate attempt to go to court and still save some cash, at the expense of due process. Federal judge Milton Shadur in Chicago recently shut down a mass lawsuit on behalf of the film Cowgirl Creampie, saying, "No predicate has been shown for thus combining 300 separate actions on the cheap. If CP had sued the 300 claimed infringers separately for their discrete infringements, the filing fees alone would have aggregated $105,000 rather than $350."

Howell's different perspective is defensible on its merits—but was it unduly influenced by her past as a copyright lobbyist? Does that matter? And where do we draw the line when it comes to a judge's history?

Howell's case is only one specific example of a much larger issue, one that always revolves around people working for corporations, entering government to make law or policy relating to those corporations, and then returning to private life (and perhaps to those same corporations). This was a concern early in the Obama administration when it appointed several litigators with extensive RIAA work to key posts in the Department of Justice. Critics complained, but others noted that most lawyers work with a wide range of clients and on a host of issues.

That doesn't stop the criticism. Boing Boing noted early this year that the new US Solicitor General would be Tom Verrilli, "a notorious entertainment industry lawyer" who "masterminded the case against Grokster." (See a defense of this practice and comments on why it doesn't represent a government "infiltration.")

In the meantime, that revolving door keeps revolving—and it creates problems of perception, if nothing else.

Hopefully at some point the average person will understand it doesn't really matter who we elect, corporations entirely own this country. We operate in a very simple way, with their needs in mind only.

No, she did NOT "need" to recuse herself from the case and didn't; she did not meet any of the required points. However, the first part (as Moonshine) said, is the APPEARANCE of impartiality may be questioned. I'm questioning it.

First, there really has not been a "revolving door" with federal judges. These are lifetime appointments for precisely this reason. So, that's a fundamental failure of the thought process.

Second, almost all judges are first lawyers. All lawyers have clients of one ilk or another. This is like saying that if you were a criminal defense lawyer, you should recuse yourself from all criminal matters. Or, more specifically to this case, that if you worked for the U.S. attorney, you should recuse yourself from all criminal matters.

So the story is really this: "Judge makes ruling consistent with views expressed publicly throughout her career".

EDIT: My point being that the more appropriate time to complain about a federal judge who has views you disagree with is during their confirmation process, not by claiming they should recuse themselves on every case they have an even remote connection to. By that logic, she should recuse herself from any money laundering, wire tapping, copyright, extortion, narcotics, first amendment and fourth amendment related case. So what exactly will she be allowed to hear?

No, she did NOT "need" to recuse herself from the case and didn't; she did not meet any of the required points. However, the first part (as Moonshine) said, is the APPEARANCE of impartiality may be questioned. I'm questioning it.

Why would you question it when you know it to be true? Since she lobbied for these corporations, she shouldn't be allowed to preside over any case that involves them.

This article doesn't surprise me anymore. When we have judges on SCOTUS granting patents to plants (Monsanto) and the DoJ is filled with ex-RIAA/MPAA lawyers, there's just one thing to take away from this: government is now just another form of Corporate America.

The FDA, as well as several copyright offices, all are now headed by ex-employees whose job it was to protect the company's best interests.

It's freakin' scary the head of the FDA, whose role it is to protect consumers, is now funded by corporations so she can look the other way and shelve life-threatening issues, ironically such as the Monsanto use of e.coli in their patented plants.

Whose to blame for all this?

We are. We voted for people who no longer have our best interests in mind.

Score one for democracy as dictators are having a tough year for treating their people like shit. /sarcasm

First, there really has not been a "revolving door" with federal judges. These are lifetime appointments for precisely this reason. So, that's a fundamental failure of the thought process.

Second, almost all judges are first lawyers. All lawyers have clients of one ilk or another. This is like saying that if you were a criminal defense lawyer, you should recuse yourself from all criminal matters. Or, more specifically to this case, that if you worked for the U.S. attorney, you should recuse yourself from all criminal matters.

So the story is really this: "Judge makes ruling consistent with views expressed publicly throughout her career".

So if I were a criminal and you defended me, and then became a judge presiding over a case involving me, you wouldn't see that as a conflict of interest, and all impartiality null and void?

Cases of all kinds either gets thrown out, or reassigned, for circumstances like that.

First, there really has not been a "revolving door" with federal judges. These are lifetime appointments for precisely this reason. So, that's a fundamental failure of the thought process.

Second, almost all judges are first lawyers. All lawyers have clients of one ilk or another. This is like saying that if you were a criminal defense lawyer, you should recuse yourself from all criminal matters. Or, more specifically to this case, that if you worked for the U.S. attorney, you should recuse yourself from all criminal matters.

So the story is really this: "Judge makes ruling consistent with views expressed publicly throughout her career".

So if I were a criminal and you defended me, and then became a judge presiding over a case involving me, you wouldn't see that as a conflict of interest, and all impartiality null and void?

Cases of all kinds either gets thrown out, or reassigned, for circumstances like that.

The case doesn't involve her former client. Bad example.

Better example would be that I defended you, then I was a judge and a case came before me that was similar to yours. Should I recuse myself?

This is one of the many reasons I am in support of the death penalty being applied to abuse of power and crimes committed during the course of public service jobs. Ok death may be harsh, depending on the crime that is. Surely a higher conviction rate of those in public service would engender some respect for the position and the responsibility that comes with it.

To those of you whom invariably view this as crazy bear in mind that the government already kills people legally and already tells you how to eat, how to drive, how to buy and sell ect. Its a natural progression to expect those in power to be subject to the same (if not stiffer) penalties as the rest of us.

First, there really has not been a "revolving door" with federal judges. These are lifetime appointments for precisely this reason. So, that's a fundamental failure of the thought process.

Second, almost all judges are first lawyers. All lawyers have clients of one ilk or another. This is like saying that if you were a criminal defense lawyer, you should recuse yourself from all criminal matters. Or, more specifically to this case, that if you worked for the U.S. attorney, you should recuse yourself from all criminal matters.

So the story is really this: "Judge makes ruling consistent with views expressed publicly throughout her career".

EDIT: My point being that the more appropriate time to complain about a federal judge who has views you disagree with is during their confirmation process, not by claiming they should recuse themselves on every case they have an even remote connection to. By that logic, she should recuse herself from any money laundering, wire tapping, copyright, extortion, narcotics, first amendment and fourth amendment related case. So what exactly will she be allowed to hear?

Re: the "revolving door" question, the point is about how this -already- happened, esp. in the move from the Senate Judiciary Committee to lobbying, and how years of lobbying might have influenced her.

But of course your larger questions are good ones, which is why they're asked in the piece.

It seems simple if you are a judge that believes that the internet is a free for all and that these rights holders are making illegal move to repress copying of their copyrighted material your chances of becoming a judge are non existant if on the other hand you take massive backhanders from the industry and apply the law completely in their favour you will go far. The answer is to shorten copyright by 50 years after all if you cant make money from the first 20 years of your product being on monopoly sale it wasnt worth protecting it in the first place.

Interesting. I had not seen this before, but you are correct that this is a more specific description of what I am attempting to convey.

I would say that the two (oligarchy and inverted totalitarianism) probably overlap quite a bit, since it's not like the small shareholders of a corporation get to make any of the decisions. The "big dogs" of corporations are the oligarchs who manage politicians. And the politicians manage the "managed democracy" (typical corporate outsourcing). While the occasional exceptional person may elevate themselves to that level, the deck is stacked to favor the entrenched interests.

"It is highly unlikely that the plaintiffs could protect their copyright in a cost-effective manner," she noted.

And that's exactly the point.. they shouldn't be able to. She should recuse herself, as obviously she's wrong-headed on this topic due to years of propaganda exposure/regurgitating.

I'm going to play the devil's advocate here and ask why the hell not? The justice system is theoretically not about how much you can afford to pay at all. Looking at this from the perspective of giving people the ability to litigate without having to pay hundreds of thousands of dollars to do so, what's the problem?

We always bitch when some mega corp sues someone and they have to give in because they can't afford the legal fees to stand up for themselves. We bitch when some filthy rich celebrity gets preferential treatment and avoids punishment because they can buy the best legal defenses. So this time we're saying (damn near 100% so far in this discussion) that companies should have to pony up the cash to take advantage of the legal system?

Is it solely because it's a big faceless corporation we don't like and not an individual? For a group who is concerned about the fairness of our legal system, I don't feel this makes any sense. We're being judgmental and "OMG the RIAA is evil, screw them by any means possible" here, at the expense of thinking about the topic rationally.

This is an entirely separate issue from the judge's potential bias, by the way.

"(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

I think that that is grounds for recusal .

So, just because this is a different group than her previous employer, but their goal is in line with the desire of their previous employer, it's unreasonable to question being impartial? Years of work in line with the goals of the copyright group, would not have created any bias I am sure. Her judgement for the poor copyright group, that can't afford the time and money to sue the defendants individually, unlike those defendents is in no way related to her previous work. Nothing to question here, please move along.....

Re: the "revolving door" question, the point is about how this -already- happened, esp. in the move from the Senate Judiciary Committee to lobbying, and how years of lobbying might have influenced her.

But of course your larger questions are good ones, which is why they're asked in the piece.

I know it's always hard to have a discussion about tone of a piece, because everyone reads it differently. However, my reading is that those questions are asked, but in such a dismissive tone that the "correct" answer is assumed to be obvious.

Furthermore, the philosophical problem with the revolving door is usually the anticipation that it will continue to revolve. The concern is not generally simply that someone once worked as a lobbyist. The concern is usually that they might want to leave themselves in a position to work for those interests again in the future. In such a case, you might be worried that they would lean to the side of those interests, whether they agree with that position or not. In this case, you are only concerned that she might lean to that side because she once worked for them, a position that is indistinguishable from the idea that maybe she worked for them because she already leaned that way.

Everyone, including Ms. Howell knows she should recuse herself... This is not what she and her appointment are about. It is the same thing as the "so called" stimulus going to the SEIU and then back into Democrat campaign coffers. This is the ultimate in government fraud and corruption, all on display. Payback for Barry's political comrades.

The questions are:do we care? and will we vote the violators of our Constitution out of office?

"It is highly unlikely that the plaintiffs could protect their copyright in a cost-effective manner," she noted.

And that's exactly the point.. they shouldn't be able to. She should recuse herself, as obviously she's wrong-headed on this topic due to years of propaganda exposure/regurgitating.

I'm going to play the devil's advocate here and ask why the hell not? The justice system is theoretically not about how much you can afford to pay at all. Looking at this from the perspective of giving people the ability to litigate without having to pay hundreds of thousands of dollars to do so, what's the problem?

We always bitch when some mega corp sues someone and they have to give in because they can't afford the legal fees to stand up for themselves. We bitch when some filthy rich celebrity gets preferential treatment and avoids punishment because they can buy the best legal defenses. So this time we're saying (damn near 100% so far in this discussion) that companies should have to pony up the cash to take advantage of the legal system?

Is it solely because it's a big faceless corporation we don't like and not an individual? For a group who is concerned about the fairness of our legal system, I don't feel this makes any sense. We're being judgmental and "OMG the RIAA is evil, screw them by any means possible" here, at the expense of thinking about the topic rationally.

This is an entirely separate issue from the judge's potential bias, by the way.

I'm going to have to flat out disagree with SReplicant written quote there (which may not be what he meant), in that yes, copyright holders should not be subject to burdensome legal fees to protect their copyright. As Polyester states, what's good for the goose is good for the gander

However.

The *attorneys* for copyright holders do not have any such right. Perhaps I'm being foolish, but my impression is that the costs are for the attorneys to bear. Therefore, the attorneys need to factor in these costs before they agree to the case, and cannot count on being able to abuse joinder to reduce those costs. It's part of their cost of doing business.

Can anyone clear up for me who is actually out of pocket for the filing expense? I presume it will be a complicated "depends on... " type answer.

Re: the "revolving door" question, the point is about how this -already- happened, esp. in the move from the Senate Judiciary Committee to lobbying, and how years of lobbying might have influenced her.

But of course your larger questions are good ones, which is why they're asked in the piece.

I know it's always hard to have a discussion about tone of a piece, because everyone reads it differently. However, my reading is that those questions are asked, but in such a dismissive tone that the "correct" answer is assumed to be obvious.

Huh. Well, I can tell you that they seem like quite interesting and legitimate questions to me, and I had hoped that was clear in the piece, but it sounds like it might not have been. The movement between the private sector and government will always lead to questions about one's background, and whether someone worked in one industry too long to be fair to certain cases. This goes in all directions: should someone who spent years in social justice work, immigration, and homelessness, recuse herself from ruling on any such issues if they come before her? If you push hard enough, you eventually come to a standard that basically bars any human being from becoming a judge. So the question is about where you draw the line, which seems quite difficult to do.

I'm going to play the devil's advocate here and ask why the hell not? The justice system is theoretically not about how much you can afford to pay at all. Looking at this from the perspective of giving people the ability to litigate without having to pay *** hundreds of thousands of dollars *** to do so, what's the problem?

Incorrect. $380.

The argument is that if you have to actually pay court fees for each individual lawsuit, the business model of "sue everybody, hope enough give in to make bank" fails. Tough shit.

If you cannot afford to pay $380 to sue someone, no, you should NOT be able to sue everyone without paying court costs.

"It is highly unlikely that the plaintiffs could protect their copyright in a cost-effective manner," she noted.

And that's exactly the point.. they shouldn't be able to. She should recuse herself, as obviously she's wrong-headed on this topic due to years of propaganda exposure/regurgitating.

I'm going to play the devil's advocate here and ask why the hell not? The justice system is theoretically not about how much you can afford to pay at all. Looking at this from the perspective of giving people the ability to litigate without having to pay hundreds of thousands of dollars to do so, what's the problem?

We always bitch when some mega corp sues someone and they have to give in because they can't afford the legal fees to stand up for themselves. We bitch when some filthy rich celebrity gets preferential treatment and avoids punishment because they can buy the best legal defenses. So this time we're saying (damn near 100% so far in this discussion) that companies should have to pony up the cash to take advantage of the legal system?

Is it solely because it's a big faceless corporation we don't like and not an individual? For a group who is concerned about the fairness of our legal system, I don't feel this makes any sense. We're being judgmental and "OMG the RIAA is evil, screw them by any means possible" here, at the expense of thinking about the topic rationally.

This is an entirely separate issue from the judge's potential bias, by the way.

I'm going to have to flat out disagree with SReplicant written quote there (which may not be what he meant), in that yes, copyright holders should not be subject to burdensome legal fees to protect their copyright. As Polyester states, what's good for the goose is good for the gander

However.

The *attorneys* for copyright holders do not have any such right. Perhaps I'm being foolish, but my impression is that the costs are for the attorneys to bear. Therefore, the attorneys need to factor in these costs before they agree to the case, and cannot count on being able to abuse joinder to reduce those costs. It's part of their cost of doing business.

Can anyone clear up for me who is actually out of pocket for the filing expense? I presume it will be a complicated "depends on... " type answer.

My understanding is that these mass P2P cases are taken on contingency, with the law firm putting up the initial cash and sharing in any payouts.

Second, almost all judges are first lawyers. All lawyers have clients of one ilk or another. This is like saying that if you were a criminal defense lawyer, you should recuse yourself from all criminal matters. Or, more specifically to this case, that if you worked for the U.S. attorney, you should recuse yourself from all criminal matters.

I think there is a big difference between acting as a lawyer and acting as a lobbyist in terms of the role of the job as well as scope.

Our court system requires competent lawyers on both sides for justice to prevail, and thus everyone deserves to have good representation in court. However, arguing about the determination of fact or interpretation of law is very different than arguing that the law should be changed. Once you have stepped into the role of being paid to push for changes in laws I think your objectivity in interpreting those laws should be questioned. Especially when you are doing so for the benefit of a small interest group rather than society as a whole.

In terms of scope, she was lobbying for an entire industry, and that should be the scope at which recusal is appropriate. If someone only served a client for one case, then they should only recuse themselves for issues directly related to that case. If they were on payroll or retainer for a client then they should recuse themselves from any cases related to that client. If they lobbied for a certain industry, then they should recuse themselves from cases relating to that industry. In this case you could argue that since she was lobbying for the music industry not the movie industry, that it isn't related, but I think there is enough overlap in their lobbying goals to create a conflict of interest.